This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 1, 2006, with the record closing on July 25, 2006. There were nine disputed issues including three quarters of supplemental income benefits (SIBs), which the hearing officer determined in respondent’s 1 (claimant) favor. In Appeals Panel Decision (APD) 061787, decided October 30, 2006, the Appeals Panel reversed the hearing officer’s determination that the claimant’s impairment rating (IR) is 15% and since the IR is still in dispute the Appeals Panel reversed the hearing officer’s determinations on the three quarters of SIBs and a contribution issue. The Appeals Panel remanded the case for a determination of an IR that is not contrary to the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) and is supported by the evidence. The hearing officer is then to make a new determination on the SIBs issues and the contribution issue.
The appellant (carrier) appeals a Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees (Order), (Docket No. 1) (Sequence No. 25) dated August 25, 2006, approving 69.20 hours of the 70.50 hours of requested attorney fees at $250.00 an hour for an approved attorney fee of $17,300.00. The Order for Sequence No. 25 was ordered by the hearing officer who heard the case in APD 061787, supra. The carrier also purports to appeal (Docket No. 2) (Sequence No. 26) and (Docket No. 3) (Sequence No. 27), both dated August 22, 2006, and ordered by an individual other than a hearing officer. Sequence No. 26 approves 23 hours of requested attorney fees at $200.00 an hour and 1.75 hours of requested legal assistant fees at $50.00 an hour for an approved fee of $4,687.50. Sequence No. 27 approves 28.50 hours of attorney fees at $200.00 an hour and approves 1.75 hours of requested legal assistant fees at $50.00 an hour for a total approved fee of $5,787.50. The carrier recites that it appeals “‘reasonable and necessary’ attorney’s fees (Orders were issued in three amounts: $17,300.00; $4687.50; $5787.50).” The carrier argues that the hearing officer “failed to apportion those fees unrelated to the SIBs issues” and that the carrier was denied due process. The claimant’s attorney responds that the carrier’s appeal of Sequence Nos. 26 and 27 was not timely and otherwise urges affirmance.
DECISION
Reversed and remanded.
First, regarding the timeliness of carrier’s appeal of Sequence Nos. 26 and 27, we hold that the appeal was filed within 15 days after the orders were received from the Division. See Section 410.202(a). However, the Orders for Sequence Nos. 26 and 27 were ordered by someone other than a hearing officer. The proper method to appeal an Order for Attorney’s Fees ordered by someone other than a hearing officer after a benefit CCH is to request a benefit CCH. See 28 TEX. ADMIN. CODE § 152.3(d) and (e) (Rule 152.3(d) and (e)). See also APD 052736, decided January 11, 2006. Because the Orders for Sequence Nos. 26 and 27 were not ordered by a hearing officer after a benefit CCH, appeal of those orders is not properly before us and the Appeals Panel does not have jurisdiction to determine the appeal of those orders.
The Order for Sequence No. 25 approves 69.20 hours of attorney fees at $250.00 an hour for an approved total of $17,300.00 for services rendered from December 1, 2005, through July 24, 2006. We note that the Order for Sequence No. 26 covers services rendered from January 11, 2006, through August 15, 2006, and the Order for Sequence No. 27 covers services rendered from June 27, 2005, through January 11, 2006, therefore it appears there may be some overlapping time periods involved.
Section 408.147(c) and Rule 152.1(f) provide that an attorney for an employee who prevails when a carrier contests a Division determination of eligibility for SIBs shall be eligible to receive a reasonable and necessary attorney’s fee, including expenses, which is payable by the carrier, not out of the employees benefits and the fee shall not be limited to a maximum of 25% of the employee’s recovery. The provisions of Rule 152.1(f) only apply to SIBs cases and for all other matters to include the IR, contribution, extent of injury, carrier waiver and finality that are applicable to this case the provisions in Rule 152.1(c) and guidelines in Rule 152.4 apply. In considering the approval of attorney fees the hearing officer should consider the criteria listed in Section 408.221(d). We further note that the burden of proving that the time billed was reasonable and necessary is on the attorney claiming the fees. APD 951731, decided November 16, 1995; APD 980036, decided February 17, 1998.
The fees ordered to be paid in the Order for Sequence No. 25 recites the fees are to be paid pursuant to Section 408.147(c) and Rule 152.1(f). That is true for only the fees pertaining to SIBs in which the claimant prevails. Since this case was reversed and remanded in APD 061787, supra, there has been no final Division decision on entitlement to SIBs for the first, second and third quarters. Therefore, no decision and order on these attorney fees should be issued until there has been a determination on the IR and the SIBs for the first, second and third quarters. We agree with the carrier that the application for attorney fees should segregate the fees which are for SIBs from the fees which are for work performed on the other issues.
The Order for Sequence No. 25 is reversed and remanded to the hearing officer to await the determination on the IR, the three quarters of SIBs and contribution issues. Then the application for attorney fees is to apportion the fees for services rendered for SIBs and the services rendered for the other issues which are subject to the provisions of Rule 152.1(c) and the guidelines in Rule 152.4.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202, which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.
The true corporate name of the insurance carrier is CLARENDON NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Thomas A. Knapp – Appeals Judge
CONCUR:
Veronica L. Ruberto – Appeals Judge
Margaret L. Turner – Appeals Judge